New Mexico county issues gay marriage licenses in spite of statewide ban

In New Mexico, Doña Ana County Clerk, Lynn Ellins, has announced that his office has begun issuing marriage licenses to same-sex couples, beginning on the morning of Wednesday, 21 Aug 2013. (Doña Ana is home to Las Cruces, NM and is in the southern part of the state, right up next to the end of the Texas panhandle.)

Ellins says he made this decision after reviewing the opinion of New Mexico State Attorney General Gary King, who said the state’s de facto ban on same sex marriage is unconstitutional under both state and Federal law.

From KQRE:

In a statement, Dona Ana County Clerk Lynn Ellins said that he carefully read the state laws and concluded that the “state’s marriage statutes are gender neutral and do not expressly prohibit Dona Ana County from issuing marriage licenses to same-gender couples.”
(…)
“Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act,” Ellins said. “Dona Ana County is upholding New Mexico law by issuing these marriage licenses, and I see no reason to make committed couples in Dona Ana County wait another minute to marry.”

A separate story on KOB News mentions that at this time 11 licenses were issued, although an attached photo indicates the couple shown is the 17th to be granted a license by the Doña Ana office. (Update: Reports are that 42 couples received licenses by 5pm, some traveling from other nearby counties and one couple from Albuquerque. Ellins says he will continue to have his office issue licenses from now on unless ordered to stop by a judge.)

In a late-breaking development, State AG Gary King has said he will not challenge the action, and in fact will choose not to intervene or seek an injunction should any other county clerk anywhere in New Mexico decide to join Doña Ana county in issuing same-sex marriage licenses. King did warn however that these marriages could be invalidated if the State Supreme Court rules against marriage equality in the several pending cases.

Photo via

Gay couple. Photo via Shutterstock

This move came a day after a Santa Fe couple asked the NM Supreme Court to expedite handling of their challenge to the state’s current ban and refusal to recognize same-sex marriages. Previously, King had offered his opinion, but asked the county clerk offices to refrain from acting on it. This new position is a reversal.

Predictably, New Mexico’s Governor Susana Martinez has expressed her belief that marriage is supposed to be limited to heterosexual couples only and repeated her preference if there’s to be any change in the law, it be done not through the courts or even the legislature, but by popular vote.

Backgrounder

New Mexico is unique in its legal situation vis a vis marriage equality. The state has a number of LGBT non-discrimination laws in place, including a ban on discrimination “in matters of employment, housing, credit, public accommodations and union membership.” There is also a state-level hate-crimes law covering sexual orientation and gender identity.

Unlike nearly every other state that does not recognize same-sex marriages, New Mexico does not have an explicit legal ban. That is, there is no law or constitutional amendment defining marriage as “only between one man and one woman.” Moreover, state law is entirely gender-neutral in its definition of who can enter into a legally valid marriage. The only exception to this is another law that defines the marriage license application form.

To further complicate matters, state law explicitly requires recognition of any legally enacted marriage, performed in any other state or country, subject to a short list of excluded marriages. These include under-age marriages, forced marriages, polygamous or group marriages, and so on. Conspicuously missing from that list: Same-sex marriages.

You’d think that would mean of course New Mexico recognizes same-sex marriages. I’ve even seen news accounts get this wrong, claiming that even if they’re not performed here, the state recognizes out-of-state same-sex marriages.

At this time, New Mexico does not recognize same-sex marriages, no matter where they were performed. Hence although it is not an explicit legal ban, it remains a de facto ban. However the legal reasoning upon which this particular state policy lies is obviously very shaky. The only thing standing in the way of marriage equality is legal inertia, and the time it takes for the court challenges to be heard and ruled upon.

There is at this time no state where there is a greater likelihood — or at least the strong possibility — of a judicial ruling in favor of marriage equality rights.


Published professional writer and poet, Becca had a three decade career in technical writing and consulting before selling off most of her possessions in 2006 to go live at an ashram in India for 3 years. She loves literature (especially science fiction), technology and science, progressive politics, cool electronic gadgets, and perfecting Hatch green chile recipes. Fortunately for this last, Becca and her wife currently live in New Mexico. @BeccaMorn

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  • clarknt67

    “state government is effectively violating state law” I don’t think that’s accurate at all. The point is there is no law to either follow or violate. It’s just a very grey area, and the exclusion of same-sex couple comes merely because they have never been included, and no one ever fought to have them included.

  • http://www.rebeccamorn.com/mind BeccaM

    Thank you. I honestly didn’t think I’d feel anything other than tired from the long drive out and restless night in a strange hotel bed, but my wife and I were — according to reports — beaming like loons at each other.

    And congrats to you, too, friend.

  • Strepsi

    CONGRATULATIONS!

    I’ve never had such a massive, aching smile on my face as the day I got hitched.

  • http://www.rebeccamorn.com/mind BeccaM

    I appreciate your providing me with the more accurate information on that, and doing so in a polite and gentle fashion. ;-)

    For what it’s worth, I live very close to Edgewood. You should get your sister to ship you some chile verde — there’s plenty around. In fact, right now, we’re just starting the major part of the Hatch chile season and practically every store has a propane roaster in front and big sacks of chiles. My understanding is lots of folks have un-roasted chiles shipped to them by friends and relatives, so much so, our local UPS stores all have instructions on how to do it right.

  • AggieCowboy

    You’re welcome. If you run into my sister over in Edgewood, tell her ‘hi’. LOL. Miss my mountains and my chile verde. Oklahoma sucks.

  • http://www.rebeccamorn.com/mind BeccaM

    Cool, thanks.

  • UncleBucky

    Well, it’ll be a nice piece of paper to have. Congratulations.

    Now, as to comparing that paper to one that you get in New Zealand, Canada, South Africa, etc., there is still a long battle ahead and many conservatives will have to die. )Hehehe, it’s a trick concept.)

  • hefetone

    Day three and counting, and still
    no story on the killing of Chris Lane in Oklahoma. If America Blog does cover
    it, the story will probably go something like this:

    ‘Right wing race baiting over teens who had no hope who ‘allegedly’ shot a foreigner’

    Cause you know, like, if two black guys shoot a white guy while being
    driven by another white guy, that proves it wasn’t racially motivated.
    Will this site every address racial issues in a fair manner?

  • AggieCowboy

    Becca, geography correction. This is one for the “One of Our 50 is Missing” column in New Mexico Magazine.

    The Texas Panhandle is the northern “arm” of Texas where Amarillo is located and borders the East Plains of New Mexico along Union, Quay, Curry, Roosevelt, and Lea Counties. Dona Ana County is in the south-central part of NM and shares its southern border with (Far) West Texas (where El Paso is located) and (Old) Mexico.

  • http://www.projectmanager.com/ Ericka

    Every person who love each other must be respected no matter what is their gender preferences.

    Project Manager – Online Project Management Software

  • JayRandal

    How come no Manning thread on Americablog today? Why are some liberal blogs like this one and dailykos afraid to label President Obama as a petty tyrant? He has betrayed political-left over and
    over again. He has NOT done a single thing decent for Black Americans. Obama is a DINO who is not worth a damn. Shame on anybody who defends him on here.

  • http://www.rebeccamorn.com/mind BeccaM

    That is precisely one of the top reasons my wife and I, even though we live in NM, traveled to California a few weeks ago to get hitched there. We feel it puts us in the strongest possible legal position.

  • neroden

    If nothing else, I can see no way whatsoever that the ban on “foreign” (out-of-state) same-sex marriages will survive a court challenge if you have even remotely honest courts.

    NY had a much vaguer “public policy” exception to its law on recognition of out-of-state marriages, and yet it was ruled (by the same court which did not legalize same-sex marriage) that NY was required to recognize same-sex out-of-state marriages. NM’s law shows a very clear intent to recognize ALL out-of-state marriages except for a defined list, so I really see no way that a judge could read an extra restriction into the list.

  • http://www.rebeccamorn.com/mind BeccaM

    I agree completely. Unfortunately down this way, the judges have leaned more towards the “original intent” angle — because honestly, there’s no way the drafters of the original “must recognize nearly all legal marriages” law envisioned same-sex marriage.

    Still, the law is the law, and we have both our state laws banning most forms of anti-gay discrimination -and- the recent SCOTUS ruling. Both of those are sure to weigh heavily in upcoming deliberations at the district and State Supreme Court levels.

  • neroden

    So the state government is effectively violating state law. I can see why the AG issued the advisory opinion which he issued. The law is pretty damn clear about NM recognizing out-of-state marriages — it is plainly required to.

    Regarding in-state marriages, it’s a very tricky legal issue, given that it depends on the legal import of the law *defining the marriage application form*. This is a bit similar to the situation in NY before legalization, where the state’s top court ruled that the marriage application law was controlling, but NY has a legal tradition of extremely rigid, legalistic, and by-the-letter interpretations of laws (which benefits us when it comes to suing banks over fraudulent paperwork and stuff like that). NM has a much looser, more intent-based legal tradition, so it’s unclear how the courts will run on in-state marriages.

  • http://www.rebeccamorn.com/mind BeccaM

    I was actually a little surprised. The normal pattern in other states — and was also here, until just today, is the state AGs invariably advise the county clerk offices not to issue any licenses until whatever pending litigation is before the courts is decided.

    Folks down here have been pressuring AG King to give the go-ahead for a long time now, increasingly so since the SCOTUS DOMA ruling.

  • http://www.rebeccamorn.com/mind BeccaM

    Moreover, the state government will not recognize any same-sex marriages at this time. Hence exactly as you say — it is a de facto ban. Which is why I described it as such and spent the time explaining how NM is such an odd duck when it comes to marriage equality.

  • Thom Allen

    Incredible, and the AG ISN’T opposing it! Maybe some of the less paleolithic republicans are starting to get the message. And Pennsylvania’s AG is refusing to enforce PA’s ban on same-sex marriages. Now Illinois needs to get moving. And Christie needs to get his thumb out and think clearly.

  • nicho

    If counties won’t issue licenses, then there is a de facto ban, which is what the article said.

  • RJ

    In spite of what ban? There is no ban in NM!

  • http://adgitadiaries.com/ karmanot

    YEA!!!!!!

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